In re the Adoption of P.H. and M.H., Minor Children, B.H. v. M.S. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 02 2018, 8:49 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Elden E. Stoops, Jr. Pamela Buchanan
Law Offices of Elden E. Stoops, Jr. Buchanan & Bruggenschmidt, P.C.
North Manchester, Indiana Zionsville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re the Adoption of P.H. and March 2, 2018
M.H., Minor Children, Court of Appeals Case No.
06A01-1706-AD-1494
B.H.,
Appeal from the Boone Superior
Appellant-Respondent, Court
v. The Honorable Matthew C.
Kincaid, Judge
M.S., Trial Court Cause Nos.
06D01-1606-AD-7
Appellee-Petitioner 06D01-1606-AD-8
Baker, Judge.
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[1] B.H. (Father) appeals the trial court’s order permitting M.S. (Stepfather) to
adopt Father’s biological children without Father’s consent, arguing that the
trial court erred by finding that for at least one year, Father failed to support his
children when able to do so and failed to communicate significantly with his
children when able to do so. Finding no error, we affirm.
Facts
[2] T.H.S. (Mother) and Father are the biological parents of two minor children,
M.H. and P.H. In 2009, Mother and Father divorced in Texas, and that same
year, Mother moved to Indiana to be near her family. The final divorce decree
awarded Mother primary physical custody and the parents joint legal custody.
In the decree, Mother agreed to waive Father’s child support obligation for four
years to allow Father time to complete his college education or start a
profession if he chose to do so. Mother paid all of the children’s living expenses
during these four years. The decree ordered Father to start paying child support
to Mother on March 1, 2013; ordered that his child support obligation would be
calculated based on Father earning the minimum hourly wage if Father was
unemployed on March 1, 2013; divided parenting time between the parents;
ordered Mother to provide health insurance for the children; and ordered
Mother and Father to divide equally the children’s uninsured healthcare costs.
[3] Father did not start paying child support on March 1, 2013, nor did he
contribute financially to the children’s uninsured healthcare expenses. Since
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March 1, 2013, Father has been gainfully employed, including a two-year stint
as a successful salesperson for an electronics store.
[4] Since the divorce, Father has moved several times in Texas, Georgia, and South
Carolina. Father did not notify the trial court of his new addresses. Mother
tried to encourage Father to establish regular contact with the children, sent
Father photographs of them, and emailed Father with updates about them.
Mother emailed Father about his child support obligation several times and
asked for his income records, but Father did not respond to Mother’s emails or
provide copies of his tax returns. Mother occasionally mailed packages to
Father at Father’s last-known address, often including a letter from Mother,
information about and copies of receipts for the children’s uninsured health-
care expenses, and current photographs of the children. Most of the packages
were returned to Mother, marked “unclaimed or unknown addressee.” Tr. Vol.
II p. 65.
[5] Father did not exercise all the parenting time he was entitled to, and despite an
order requiring him to provide notice to Mother if he was unable to exercise his
parenting time, Father routinely failed to provide such notice to Mother.
Father’s contact with the children included the following:
• In 2010, Father spoke with the children by phone four times and by
Skype once for a total of 105 minutes. In June, Mother took the children
to Texas for a three-day visit with Father. In November, Father saw the
children when Mother took them to South Carolina to visit their paternal
grandmother.
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• In 2011, Father spoke with the children by phone five times for a total of
one hundred minutes. In May, Mother took the children to Texas for a
three-day visit with Father.
• In 2012, Father spoke with the children by phone twice and by Skype
once for a total of ninety-four minutes. In November, Father saw the
children during their four-day visit to their paternal grandmother in
South Carolina.
• In 2013, Father spoke with the children by phone ten times and by Skype
once for a total of 189 minutes. In November, the children had a two-
day visit with Father in Atlanta, during which the children called Mother
because Father had no food for them in his apartment. Father also saw
the children during their ten-day visit to their paternal grandmother in
South Carolina.
• In 2014, Father spoke with the children by phone twice and by Skype
twice for a total of fifty-five minutes. In July, the children again visited
their paternal grandmother in South Carolina; Father saw the children on
four of the ten days of their visit. In November, Father drove to Indiana
for a visit with the children that lasted less than twenty-four hours.
• In 2015, Father spoke with the children by phone twice and by Skype
once for a total of forty-eight minutes. In March 2015, Father left his
daughter a voicemail message wishing her a happy birthday, despite her
birthday being in September.
[6] In 2014, Mother married Stepfather. On June 3, 2016, Stepfather petitioned to
adopt M.H. and P.H. In his petition, Stepfather alleged that Father’s consent to
his adoption of the children was not required because Father had failed without
justifiable cause to communicate significantly with the children when able to do
so and that Father had knowingly failed to provide for the care and support of
the children when able to do so for at least one year. On June 20, 2016, Father
filed a motion contesting the adoptions.
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[7] A hearing took place on May 1, 2017, to address whether Father’s consent to
Stepfather’s adoption of the children was necessary. On June 19, 2017, the trial
court found that Father’s consent to Stepfather’s adoption of the children was
not required. The trial court made the following findings:
1. [Father] has been under a child support order . . . . He was to
pay 50% of uninsured medical expenses of the children and he
was to pay support after March 1, 2013.
2. Father failed to reimburse Mother for medical expenses and
prescription[s] incurred on behalf of the children during 2010
through 2013.
3. Father paid Mother no child support from March 1, 2013
through 2015.
4. Father worked as an account executive for Yellow Pages.com
for part of 2012 and 2013. He worked as a bartender from April
of 2012 until August of 2012. He worked for Conn’s Electronics
and Appliances from March of 2010 until April of 2012 – he was
in the top 100 of sales for five consecutive months with a sales
force of 2,500 peers, he was number 1 in warranties sold for
seven consecutive months at his store and he was among the top
ten additional warranty sellers company wide. Father also
worked for Verizon Wireless from 2008-2010. Father is college
educated and has experience with the United States Naval
Submarine service. Father has been issued 1099 forms and [W]-2
statements showing income and earnings. Father was able to
earn and pay his obligations and for several years he did not.
5. Additionally Father has had sporadic and rare
communication with the children. In 2010, Father spoke with
the children over the phone a total of 105 minutes. The children
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initiated all the calls. He only saw the children on two occasions
for eight total days – three days in June and five days in
November.
6. In 2011, Father spoke with the children over the phone a total
of 100 minutes. The children initiated all the calls. He only saw
the children on one occasion for three total days in May of 2011.
7. In 2012, Father spoke with the children over the phone
and/or skype a total of 94 minutes. The children initiated the
telephone calls. He only saw the children on one occasion for
four total days in November of 2012.
8. In 2013, Father communicated by phone or skype 189
minutes and saw them for parts of twelve days.
9. In 2014, Father communicated by phone or skype 55 minutes
and saw them for parts of four days.
10. In 2015, Father communicated by phone with the children
on three occasions for a total of 48 minutes. He did not see the
children in person the whole year.
11. Most of the in-person visits were really paternal grandmother
visits.
12. Father texted and communicated rather often with Mother,
seeking her counsel on romantic matters.
13. Father curiously called [M.H.] and left a very [serious]
sounding happy birthday voice mail message months from her
actual birthday. Mother has engaged professional counseling to
assist the children with coping with lack of significant
communication by their father.
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14. Generally, adoption of a child requires the consent of natural
parents. But consent to adoption is not required from a parent of
a child in the custody of another person if for a period of at least
one (1) year the parent fails without justifiable cause to
communicate significantly with the child when able to do so; or
knowingly fails to provide for the care and support of the child
when able to do so as required by law or judicial decree. I.C. 31-
19-9-8(a)(2).
15. [Father] without any justifiable cause failed to communicate
significantly with his children when he was able to do so for
more than a year – this has been shown by clear and convincing
evidence.
16. [Father] was able to provide support for his children, knew
he was obliged by the terms of the decree to do so and failed to
do so for more than one year – this too has been shown by clear
and convincing evidence.
Appealed Order p. 1-2. Father now appeals.
Discussion and Decision
[8] Father argues that the trial court erred by concluding that his consent to the
children’s adoption by Stepfather is not required. When we review a trial
court’s ruling in an adoption proceeding, we will not disturb that ruling unless
the evidence leads to but one conclusion and the trial court reached an opposite
conclusion. J.H. v. J.L. & C.L., 973 N.E.2d 1216, 1222 (Ind. Ct. App. 2012).
On appeal, we will not reweigh the evidence, instead focusing on the evidence
and inferences most favorable to the trial court’s decision. Id. We generally
give considerable deference to a trial court’s rulings in family law matters, “as
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we recognize that the trial judge is in the best position to judge the facts,
determine witness credibility, get a feel for family dynamics, and get a sense of
the parents and their relationship with their children.” Id.[9] Generally, a noncustodial biological parent’s consent to adoption is required
before an adoption petition may be granted. Ind. Code § 31-19-9-1(a)(2).
However, consent to adoption is not required from
(2) A parent of a child in the custody of another person if for a
period of at least one (1) year the parent:
(A) fails without justifiable cause to communicate
significantly with the child when able to do so; or
(B) knowingly fails to provide for the care and support of
the child when able to do so as required by law or judicial
decree.
I.C. § 31-19-9-8(a). It is well established that the provisions of Indiana Code
section 31-19-9-8 are disjunctive, and “as such, either provides independent
grounds for dispensing with parental consent.” In re Adoption of T.W., 859
N.E.2d 1215, 1218 (Ind. Ct. App. 2006).
[10] Father first argues that the trial court erred by finding that Father was able to
provide support for his children because the trial court did not address Father’s
disposable income. Specifically, he argues that the evidence presented at trial
regarding his income was deficient because the evidence did not reveal Father’s
business or personal expenses. The record shows that Father was gainfully
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employed from the date of the parents’ divorce through the date of the hearing.
During the hearing, Father testified that he could not afford to pay child
support until 2016, when he began a better-paying job. But Father was under a
court order to start paying child support on March 1, 2013, and the record
clearly shows that between March 1, 2013, and December 31, 2015, he did not
provide any child support to his children. If Father was unable to pay child
support during this time, he bore the responsibility to file a motion to modify
his child support obligation. Father did not present any evidence of having
done so or having tried to do so. Moreover, Father was the party in possession
of the details of his employment and income history. The trial court cannot be
faulted for failing to rely on evidence that Father never submitted. Under these
circumstances, we will not second-guess the trial court’s determination that
Father was able to provide for the care and support of his children but failed to
do so for at least one year.
[11] Because the trial court did not err by finding that Father failed to provide
support for the children for more than one year despite being able to do so, we
need not discuss Father’s argument regarding his communication with his
children. Nonetheless, we will still address his arguments that the trial court
erred by minimizing the contacts between Father and the children and by
overlooking Mother’s interference with Father’s communication with the
children.
[12] The inquiry regarding parent-child communication under the statute is highly
fact- and context-specific. Rust v. Lawson, 714 N.E.2d 769, 772 (Ind. Ct. App.
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1999). The inquiry is guided by the statute’s purpose: to “foster and maintain”
communication between a noncustodial parent and his child, “not to provide a
means for parents to maintain just enough contact to thwart potential adoptive
parents’[ ] efforts to provide a settled environment [for] the child.” C.H. v.
E.W., 713 N.E.2d 873, 876 (Ind. Ct. App. 1999). Whether communication was
significant is not to be measured merely in units. J.W. v. D.F., 79 N.E.3d 394,
397 (Ind. Ct. App. 2017). One significant communication in a year would be
sufficient to bar nonconsensual adoption; however, even multiple, fairly
consistent contacts may not be found significant in context. Id. The law holds
a noncustodial parent responsible for maintaining a relationship with his child if
he is to successfully resist an adoption petition. Id. The custodial or
prospective adoptive parents are under no obligation to arrange or facilitate the
noncustodial parent’s communication, or to serve his convenience. Id. at 398.
[13] Father first contends that the contacts between him and his children “were
significant as a matter of law” because “he maintained at least one contact with
them, in each year under scrutiny.” Appellant’s Br. p. 11-12. But he fails to
explain why these contacts are significant. Moreover, he disregards this Court’s
holding that even multiple, fairly consistent contacts may not be found
significant in context. When considering the context of Father’s phone calls
with the children, the trial court found that the children initiated many of the
phone calls. And while Father attempts to explain that they called him because
he had requested to talk to them, he ignores the fact that the law holds the
parent, not the children, responsible for maintaining their relationship. As for
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his in-person visits with the children, most of those took place because Mother
transported the children to visit Father or because Father saw the children
during their visits with their paternal grandmother in South Carolina. The
record shows that although Father always knew the children’s location and
Mother’s cell phone number and email address, he rarely called the children
and did not send them letters, cards, or gifts. In short, Father was aware of
different methods through which he could communicate with his children, and
he chose not to do so.
[14] Father next contends that Mother interfered with his communication with the
children. Yet the record shows that, rather than interfere with their
relationship, Mother attempted to foster a positive relationship between Father
and the children, sending him packages with updates on their lives and
travelling with them at her own expense to visit Father. Father’s only support
for his argument is his own testimony. The trial court was in the best position
to assess witness credibility, and we will not second-guess the trial court’s
determination that Father’s credibility was lacking. The trial court did not err
by finding that, for at least one year, Father failed without justifiable cause to
communicate significantly with the children when able to do so.
[15] The judgment of the trial court is affirmed.
Riley, J., and Brown, J., concur.
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